Richard Marles made the claim on social media (AAP Image/Con Chronis)
Deputy Labor leader Richard Marles during a press conference in Melbourne. Image by Con Chronis/AAP IMAGES

Labor deputy misleads with Clive Palmer legal fund claim

William Summers March 18, 2022

Prime Minister Scott Morrison used $1 million of public money to help Clive Palmer sue Western Australia.


Misleading. The $1m relates to three separate High Court cases. Mr Palmer’s WA case accounts for an unknown portion of the joint costs.

Clive Palmer has regularly been taken to task by fact-checkers throughout the COVID-19 pandemic (see here, here, here and here) but now it appears the mining magnate has himself become the subject of a questionable claim.

According to an internet meme shared by Labor deputy leader Richard Marles, the Commonwealth government used $1 million of public money to support Mr Palmer’s 2020 legal battle to reopen Western Australia’s closed borders.

The claim is misleading. The Commonwealth government spent around $1 million to intervene in three legal challenges to state border closures but most of the costs were shared across the three cases.

The meme features images of Prime Minister Scott Morrison and Mr Palmer with text that says: “He (Morrison) used $1m of your money to help him (Palmer) sue Western Australia”.

Mr Marles’ office did not respond to AAP FactCheck when asked for the basis of the claim in the meme. However, the meme appears to be a reference to the government spending more than $1 million on legal advice and other expenses relating to three separate High Court cases challenging border restrictions.

One of the cases was brought by Mr Palmer against the Western Australian government. In that case in 2020, Mr Palmer argued WA’s emergency border controls contravened section 92 of the Australian Constitution which states that trade within the Commonwealth “shall be absolutely free”.

The federal government initially intervened “in support” of Mr Palmer’s position but later withdrew from the case.

In November 2020, Mr Palmer lost his legal challenge and was ordered to pay costs.

The other two High Court cases related to border restrictions in Queensland. One of the cases was brought by Mr Palmer while the other was brought by a group of tourism businesses. Both Queensland cases were discontinued after the state reopened its borders in July 2020.

Despite Mr Marles’ claim that $1 million was used to help Mr Palmer’s WA case, the figure relates to all three High Court cases.

The figure was initially disclosed in this answer to a written parliamentary question asked by Labor senator Murray Watt in July 2021.

In that answer, Attorney-General Michaelia Cash said that as of July 21, 2021, the cost to the government for participation in the three High Court cases totalled $1,056,324. However, it was not possible to provide a single figure for Mr Palmer’s case against Western Australia because government lawyers and counsel “worked concurrently” on all three High Court proceedings until the two Queensland cases were discontinued, Senator Cash said.

The bulk of the $1,056,324 figure consisted of $910,660 for legal costs across the three cases. Around $80,000 was additionally spent on travel, accommodation and experts for the Western Australia border case. The Commonwealth government was also ordered to pay Mr Palmer $40,995 for Federal Court costs he incurred as part of his Western Australia legal action.

Dr Murray Wesson, a law academic at the University of Western Australia Law School, told AAP FactCheck in an email it is “inaccurate to say that $1 million was spent just on Palmer v WA” given the money was split across all three cases.

The Commonwealth attorney-general frequently intervenes in cases that raise constitutional issues, Dr Wesson said, though from a political perspective the government “clearly misjudged” its intervention in Mr Palmer’s WA border challenge.

Professor Anne Twomey, a constitutional law expert at the University of Sydney Law School, agreed it is normal for the Commonwealth to intervene in major constitutional proceedings in the High Court meaning a cost to the public purse was inevitable.

“In short, it would have been likely to spend a similar amount on the litigation, regardless of whether its position aided or opposed that of Mr Palmer,” Prof Twomey told AAP FactCheck in an email.

“The choice of whether the Commonwealth intervenes in a way that is favourable to one party, or whether it simply puts independent views in its own interests, is one for the Commonwealth government to make.”

The Verdict

It is true the Commonwealth government spent just over $1 million to intervene in legal cases about the validity of state border closures but not all of that money related to Mr Palmer’s case against Western Australia. The figure also covered the cost of participating in two cases about border controls in Queensland.

Legal fees account for the majority of the $1 million in question – however, it is not possible to determine exactly how much directly relates to the Western Australia border case because government lawyers worked on three separate cases simultaneously.

Misleading – The claim is accurate in parts but information has also been presented incorrectly, out of context or omitted.

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